Citation Nr: 21004880 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-02 203 DATE: January 28, 2021 REMANDED Entitlement to service connection for right-breast adenocarcinoma, to include as due to in-service exposure to an herbicide agent and/or fuel, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from January 1964 to January 1968, to include service in the Republic of Vietnam. The Board of Veterans’ Appeals (Board) notes that a June 2016 rating decision denied the Veteran’s claim. The Veteran selected the Higher-Level Review lane when he opted-in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. However, a duty-to-assist error was identified by the Agency of Original Jurisdiction (AOJ) and the claim was therefore deferred to the Supplemental Claim lane option. Accordingly, the February 2019 AMA rating decision considered the evidence of record, including new evidence, at the time of that decision. The Veteran timely appealed this rating decision by submission of a February 2019 Decision Review Request (Notice of Disagreement) to the Board and requested direct review of the evidence considered by the AOJ. In a September 2019 decision, the Board denied the Veteran’s claim. The Veteran appealed the issue to the Court of Appeals for Veterans Claims (Court). In an April 2020 Order, the Court vacated the Board’s September 2019 decision and adopted the parties’ Joint Motion for Remand (JMR) for reconsideration of the Veteran’s claim. Subsequently, in September 2020, the Board readjudicated the matter in response to the Court’s April 2020 JMR and remanded the matter for further development. While the Board regrets the additional delay, further development is required as there was not substantial compliance with its September 2020 remand directives nor the April 2020 JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for right-breast adenocarcinoma, to include as due to exposure to herbicide agents and/or fuel is remanded. In the April 2020 JMR, the parties agreed that the Board erred in relying upon an inadequate VA medical opinion in denying the Veteran’s claim. Specifically, the January 2019 medical opinion is the only opinion of record addressing the Veteran’s contention that in-service fel exposure caused his breast cancer. The parties found that this opinion was inadequate for rating purposes as it was expressed in improper terms and “provided no citation to or discussion of the evidence or literature he uncovered in his research, depriving the reader of insight into the rationale connecting the data to his conclusions.” The parties agreed that remand was warranted for a new medical opinion which adequately addressed the relevant evidence and literature and considers the evidence in light of the applicable evidentiary standards. Pursuant to the September 2020 Board remand directives, an addendum medical opinion was obtained in October 2020. The Board remand specifically requested that the examiner reconcile previous examination reports, to include private and VA opinions and provide adequate citation and discussion of any medical literature or research referenced. The October 2020 VA examiner opined that it was less likely than not that the Veteran’s right-breast adenocarcinoma had its origin in service or is otherwise related to the Veteran's active service, to include exposure to herbicides and/or military fuels. As rationale, the VA examiner noted the February 2016 and October 2016 private medical opinions provided by the Veteran’s treating physicians; however, the examiner stated only that the National Committee on Agent Orange does not agree that there is a link between Agent Orange and breast cancer. The Board finds this rationale to be inadequate for adjudicative purposes as the examiner again failed to adequately cite or address the medical literature relied upon to refute the Veteran’s private physicians’ opinions. Further, the rationale failed to provide any “insight into the rationale connecting the data to the conclusions” as discussed in the April 2020 JMR. There is no discussion regarding the National Committee on Agent Orange or what studies and/or research completed by this committee were utilized in formulating this opinion. Furthermore, the examiner limited the rationale to exposure to Agent Orange and failed to provide any reasoning to support her conclusion that the Veteran’s right-breast adenocarcinoma is not related to exposure to military fuels. Therefore, the Board finds that this opinion is inadequate for rating purposes as it is not in substantial compliance with the Board’s remand directives or the April 2020 JMR. The Veteran must be provided an additional addendum opinion that sufficiently addresses the Veteran's claim in rectification of the April 2020 JMR, and to ensure full compliance with Stegall. The matter is REMANDED for the following action: Obtain an addendum opinion from an examiner of appropriate expertise regarding the Veteran's right-breast adenocarcinoma. (If it is determined that an additional examination is needed to address this matter, such examination should be scheduled in accordance with applicable procedures.) The examiner must be given access to all records contained in the electronic file, and a notation must be made that review of all records has been accomplished. After a thorough review of the medical history, the examiner is requested to prepare a detailed opinion which answers the following: Is it as likely as not (that is, a probability of 50 percent or greater) that the Veteran’s right-breast adenocarcinoma had its origin in service or is otherwise related to the Veteran's active service, to include exposure to herbicides and/or military fuels? It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If medical literature is utilized to formulate any opinion, the examiner must provide adequate citation and discussion of such literature or research. The examiner should review the April 2020 JMR to understand why the January 2019 VA opinion was found to be inadequate. The examiner should also address and reconcile any previous examination reports, to include the February 2016 and October 2016 private opinions, and the October 2018 and January 2019 VA examination opinions, as well as any other pertinent evidence of record, as necessary. The examiner should specifically comment on the Veteran’s treating oncologist’s finding that the Veteran has no genetic mutation that would result in breast cancer. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.